& David, PLLC, Brooklyn, NY (Abraham David, Shane Wax,
and David Berg of counsel), for appellant.
WILLIAM F. MASTRO, J.P. SHERI S. ROMAN ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action pursuant to RPAPL 1501(4) to cancel and discharge of
record a mortgage, the plaintiff appeals from an order of the
Supreme Court, Kings County (Silber, J.), dated March 7,
2016, which denied its unopposed motion, in effect, for leave
to enter a default judgment against the defendant upon its
failure to appear or answer the complaint and, sua sponte,
directed dismissal of the complaint.
that on the Court's own motion, the notice of appeal from
so much of the order as, sua sponte, directed dismissal of
the complaint is deemed to be an application for leave to
appeal from that portion of the order, and leave to appeal is
granted (see CPLR 5701[c]); and it is further,
ORDERED that the order is reversed, on the law, without costs
or disbursements, the plaintiff's motion, in effect, for
leave to enter a default judgment against the defendant upon
its failure to appear or answer the complaint is granted, and
the matter is remitted to the Supreme Court, Kings County,
for the entry of a judgment canceling and discharging of
record the subject mortgage.
2006, Michelle Vassallo borrowed the sum of $540, 000 from
Credit Suisse Financial Corporation (hereinafter Credit
Suisse). The loan was evidenced by a note and secured by a
mortgage on real property in Brooklyn. Credit Suisse
subsequently assigned the note and mortgage to DLJ Mortgage
Capital, Inc. (hereinafter DLJ).
2009, DLJ commenced an action against Vassallo and others to
foreclose the mortgage (hereinafter the 2009 action).
Thereafter, MSMJ Realty, LLC (hereinafter MSMJ), purchased
the subject property from Vassallo. In an order dated July
23, 2015, the Supreme Court, after a hearing to determine the
validity of service of process, inter alia, directed
dismissal of the complaint insofar as asserted against
Vassallo for lack of personal jurisdiction.
September 2015, MSMJ commenced this action pursuant to RPAPL
1501(4) against DLJ to cancel and discharge of record the
mortgage. DLJ failed to appear or answer the complaint.
Thereafter, MSMJ moved, in effect, for leave to enter a
default judgment against DLJ, arguing that the mortgage was
unenforceable, since the debt had been accelerated and the
six-year limitations period for the commencement of an action
to foreclose the mortgage had expired. DLJ did not oppose the
motion. In an order dated March 7, 2016, the Supreme Court
denied the motion and, sua sponte, directed dismissal of the
complaint, in effect, for failure to state a cause of action.
MSMJ appeals, and we reverse.
1501 provides that "[w]here the period allowed by the
applicable statute of limitation for the commencement of an
action to foreclose a mortgage... has expired, " any
person with an estate or interest in the property may
maintain an action "to secure the cancellation and
discharge of record of such encumbrance, and to adjudge the
estate or interest of the plaintiff in such real property to
be free therefrom" (RPAPL 1501; see JBR Constr.
Corp. v Staples, 71 A.D.3d 952, 953). An action to
foreclose a mortgage is subject to a six-year statute of
limitations (see CPLR 213). "[E]ven if a
mortgage is payable in installments, once a mortgage debt is
accelerated, the entire amount is due and the Statute of
Limitations begins to run on the entire debt" (EMC
Mtge. Corp. v Patella, 279 A.D.2d 604, 605; see
Plaia v Safonte, 45 A.D.3d 747, 748; Koeppel v
Carlandia Corp., 21 A.D.3d 884; Federal Natl. Mtge.
Assn. v Mebane, 208 A.D.2d 892, 894).
MSMJ demonstrated its entitlement to a default judgment
against DLJ by submitting proof of service of the summons and
complaint, proof that DLJ failed to timely answer or appear,
and proof of the facts constituting the cause of action
(see CPLR 3215[f]; HSBC Bank USA v Angeles,
143 A.D.3d 671, 673; HSBC Bank USA, N.A. v Traore,
139 A.D.3d 1009, 1011; Deutsche Bank Natl. Trust Co. v
Rauf, 139 A.D.3d 789, 789-790), i.e., that the six-year
limitations period expired prior to commencement of the
instant action (see U.S. Bank N.A. v Barnett, 151
A.D.3d 791). The filing of the summons and complaint in the
2009 action was sufficient to accelerate the mortgage
(see Beneficial Homeowner Serv. Corp. v Tovar, 150
A.D.3d 657, 658). Contrary to the Supreme Court's
determination, although a lender may revoke its election to
accelerate the mortgage, the dismissal of the prior
foreclosure action did not constitute an affirmative act by
the lender revoking its election to accelerate, and the
record is barren of any affirmative act of revocation
occurring during the six-year limitations period subsequent
to the initiation of the 2009 action (see Kashipour v
Wilmington Sav. Fund Socy., FSB, 144 A.D.3d 985, 987;
Clayton Natl. v Guldi, 307 A.D.2d 982; EMC Mtge.
Corp. v Patella, 279 A.D.2d at 606; Federal Natl.
Mtge. Assn. v Mebane, 208 A.D.2d at 894).
MSMJ's unopposed motion, in effect, for a default
judgment against DLJ should have been granted, and the matter
must be remitted to the Supreme Court, Kings County, for the
entry of a ...